What Happens If You Die Without a Will in Wisconsin?

No one likes to think about their own mortality. We all know we’re not going to live forever; we just don’t want to think about when “it” might happen. The one time we do have to think about that is when setting up a last will and testament. This legal document will determine who in your family will benefit from your estate.

That estate is everything you own and owe at the time of your death. Yes, everyone has an estate, not just millionaires. If you die without a will in Wisconsin, the state will determine what happens to your estate. This is known as dying intestate. Although state law provides the framework for distributing your estate, that framework can leave unmarried partners, stepchildren, friends, or charities with nothing.

That is why you should seriously consider creating a will with an experienced Wisconsin family law attorney. A will can protect your legacy and support your family when they need it most.

Who Inherits Property When Someone Dies Without a Will in Wisconsin?

After your passing, you’ll want your family to be provided for. You might have a life insurance policy that designates your beneficiaries, but it would only cover the policy amount. Your remaining assets would need to be distributed according to the order of inheritance established by Wisconsin’s intestacy law. This is how that breaks down:

• If there is a surviving spouse with no children or descendants, the spouse inherits the entire intestate estate.
• If there is a surviving spouse and all of the children are shared by both spouses, the surviving spouse inherits the entire intestate estate.
• If there is a surviving spouse and the deceased spouse has children from another relationship, the surviving spouse inherits half of the deceased spouse’s individual property. The children inherit the rest, including the deceased spouse’s half of the couple’s marital property.
• If there are surviving children but no surviving spouse, the children inherit the estate equally, with special rules applying to descendants of deceased children.
• If there is no surviving spouse or descendants, the deceased person’s parents inherit the estate, followed by siblings and their descendants, and then grandparents and their descendants.

If there are no qualifying heirs, the estate passes to the State of Wisconsin.

How Wisconsin’s Marital Property Law Affects Your Assets

There are further complications with a married couple whose partner passes away.

According to Wisconsin’s marital property laws, the surviving spouse has an interest in any marital asset. That means before you can determine “who gets what,” you have to establish “who owns what.”

Wisconsin is one of nine states that follow community property principles, although its laws use the term “marital property.” Under Wisconsin’s Marital Property Act, most assets either spouse acquires during marriage are presumed to be marital property, regardless of whose name appears on the title.

Each spouse generally owns an undivided 50% interest in that property.

However, Wisconsin law distinguishes between marital property and individual property when someone dies without a will. Marital property includes income earned during marriage, homes purchased with marital funds, and other jointly acquired assets. When one spouse dies, the surviving spouse retains their 50% ownership interest.

Wisconsin’s intestate succession laws distribute the deceased spouse’s half. That half usually goes to the surviving spouse as well, but the transfer still has to be made official.

If the deceased spouse had children from another relationship, it goes to those children instead. Individual property includes assets owned before marriage, along with gifts or inheritances one spouse received individually during the marriage. These assets remain the deceased spouse’s individual property and are distributed under intestate succession guidelines.

Determining whether assets qualify as marital or individual property can complicate probate proceedings. That is especially true when funds have been combined, or ownership records are unclear.

An experienced Wisconsin probate attorney can help classify each asset and ensure assets are distributed according to state law.

What Happens During Probate Without a Will?

Probate is the legal process of settling a deceased person’s estate. Not everything goes through probate.

Assets with a named beneficiary or a joint owner pass outside it, and small estates can sometimes skip it altogether. When an estate without a will does go through probate, the court appoints a personal representative, Wisconsin’s term for an executor, to administer it.

That is often the surviving spouse or another close family member.

The personal representative’s responsibilities include the following tasks:

• Identifying and notifying eligible heirs and interested parties.
• Locating, inventorying, and valuing estate assets.
• Notifying creditors and addressing valid outstanding debts.
• Paying applicable taxes and estate administration expenses.
• Distributing the remaining property under Wisconsin intestacy laws.

Wisconsin permits both formal and informal probate administration. Informal probate generally requires less ongoing court supervision, while formal probate may be necessary if heirs disagree or legal complications arise. For smaller estates valued at $50,000 or less, Wisconsin offers simplified procedures, including transfer by affidavit when statutory requirements are met.

The state court system’s probate self-help page links to the forms.

Rights of Domestic Partners and Non-traditional Families

Another potential complication when sorting out an estate without a will involves domestic partners or nontraditional families.

If you and your partner registered as domestic partners in Wisconsin before the state stopped accepting new registrations in 2018, and the partnership was still in place at death, the surviving partner has the same intestate inheritance rights as a surviving spouse.

However, different family relationships might come into play, including the following:

Unmarried partners: Couples who live together without marrying or establishing a qualifying registered domestic partnership do not automatically inherit from each other.

That holds true regardless of how long they have been together.

Stepchildren: Stepchildren have no automatic inheritance rights unless the deceased legally adopted them.

Adopted children: Legally adopted children have the same inheritance rights as biological children.

Same-sex spouses: Legally married same-sex couples have the same intestate inheritance rights as other married couples.

Without a will, an unmarried partner or a stepchild who wasn’t adopted receives nothing from the estate, no matter how close the relationship was.

Protecting Minor Children Without a Legal Guardian

When someone dies without a will, determining who inherits the estate can be challenging, but the estate isn’t just about money, property, and other assets. Minor children may also be involved. A will is also where parents can name the guardian they want for their minor children. If one parent dies, the surviving parent usually keeps custody.

However, if there is no surviving parent and no will naming a guardian, the court will step in and appoint someone to assume responsibility for the child.

Plan Ahead With Davis & Associates

Without a will, you put your family’s well-being at risk.

Davis & Associates can help prevent that. We can prepare a thorough will that establishes who you want to benefit from your estate. This is the best way to protect your family. It doesn’t have to be complicated, and it shouldn’t take a long time.

Once your will is in place, you’ll have peace of mind, knowing your family will be protected. You can also modify your will at any time. We’re here to help your family.

Call to set up a consultation to discuss your estate planning.

Don’t put this off.